Appellant's Brief - Florida State University College of Law

testifying regarding the

testifying regarding the specific contents of the affidavit and Smykowski’s comments made to Ms. Backhus (PC-R2. 1714). The circuit court sustained the objection and precluded further representations of Smykowski’s statements to Ms. Backhus. Judge Bagley indicated that he would treat the affidavit appearing in the motion as a proffer (PC-R2. 1714- 15). In the affidavit, Smykowski admitted that he lied at the 1988 trial. He said that he had been taken out of custody on a number of occasions for social visits, dinner and drinks by Miami Police detectives. 35 He was told by Sreenan the words to use in his testimony. He said he was promised money and help on his federal case. He said that DiGregory had given permission for him to be taken out of custody. Because the U.S. government had an outstanding warrant for his arrest on a parole violation, Smykowski refused to travel to Miami to testify in 2002. Mr. Riechmann also presented the testimony of two new witnesses who were discovered shortly before the evidentiary hearing in 2002 (PC-R2. 1711-12). Doreen Bezner testified 35 After the affidavit was filed and on the eve of the 2002 evidentiary hearing, the State disclosed for the first time that Smykowski had been taken out of jail for a social visit with his daughter. Mr. Riechmann argued that the disclosure provided corroboration of the truthfulness of the affidavit that had first revealed a previously unknown fact and that the affidavit should be admitted into evidence (PC-R2. 664). 36

that she was homeless (PC-R2. 1639). She recalled that she was on the street the night that the crime occurred in 1987 (PC-R2. 1641). She remembered that the shooting occurred the same year she moved to South Florida (PC-R2. 1640, 1652). Doreen was working as a prostitute, and was still working as a prostitute at the time of testimony (PC-R2. 1651). Mark Gray, a drug dealer who was her pimp/boyfriend at the time of the shooting, ran his drug operations on Biscayne Boulevard (PC- R2. 1651). Doreen testified that she had seen Mr. Riechmann and Ms. Kischnick earlier that day at a Denny’s restaurant on Biscayne Boulevard (PC-R2. 1643). She remembered “[t]he lady was blond. A lot of gold. That’s all I can say about the lady. A lot of gold and nice ass” (PC-R2. 1643). Despite her work as a prostitute, Doreen preferred women sexually and paid attention to the blond lady (PC-R2. 1660). At the hearing, Doreen identified a magazine photograph of Ms. Kischnick as the blond lady, “[t]hat’s her” (PC-R2. 378). Doreen saw the woman speaking with Mark Gray, but she was not privy to the conversation because she was not allowed to be involved with Mark’s business associates (PC-R2. 1659-60). She assumed they were discussing a heroin transaction because “that’s what he did” (PC-R2. 1654). After the conversation, Mark told Doreen 37